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Question
Posted by: Moira | 2004/12/13

Ex's visiting rights

According to our divorce settlement, my ex is entitled to have my son one long and one short holiday every year. The boy is now 15yrs old and flatly stated that he has no desire to visit his dad this holiday. My ex, on the other hand, says its his right to see his son and refuses to listen to any explanation or pleas from our side. The situasion is getting out of hand - there is a week left before my son is due to get on the bus to Cape Town, and hes threatening to run away if I make him go.

I dont want to force him to go, but also I feel (a) that his father definately has a legal right and (b) he is refusing to go for some very selfish reasons (his friends parents invited him to go on holiday with them, unfortunately in the same timeframe that he will be visiting with his dad).

PLEASE, CAN ANYONE TELL ME HOW TO HANDLE THIS SITUATION??

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Our expert says:
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Check with your lawyer. While a court would presumably be concerned about a mother refusing to allow a father the visitation rights the court had granted, the interests and wishes of the child are supposed to be paramount, and I doubt that any court would want to force an unwilling 15-year-old to go on a visit he didin't welcome.
As I understand i the father has a legal right to have the son visit, but NOT a legal right to force the child to do so.
Q makes good snse in suggesting that you get your boy to speak to his dad and explain his attitude ---maybe they can negotiate a different timing for his visit to his father.

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Our users say:
Posted by: lulu | 2004/12/13

The father has a right to see his son, yes, but only if the child consents to this at this stage. He's already of an age where the court will let him choose where he wants to LIVE, let alone visit. The mother can also argue that she was protecting him from himself (the threat to run away) by not letting him get on the bus to see his dad.

His dad in turn can certainly talk to his lawyer about it, but the initial court order on visitation was made between the mother and the father of the child and probably when the boy was much younger. The court sees itself as the upper Custodian of all children. If he refuses to go and the court sees no reason to force him, he is free not to go. Of course, this could mean that, should the boy go, he could get off somewhere halfway before he gets to the dad, or reache the destination and run away anyway or run away before he even gets to leave, so the court will definitly take his age into consideration.

Personally I don't see the interference of the court helping any in this case. Dad will spend money on lawyers and it'll drag on and on until after the holidays anyway. Only option here is to try and compromise by taking everyone's feelings into consideration: Son doesn't want to go. Don't force him, but get him to commit to another holiday so as to get Dad some time alone with his son too.

Besides, who wants to spend a holiday with a sulky teenager?? That's all that this child will be should they succeed in forcing him to go.

Hope this answered your q?

Reply to lulu
Posted by: Kernel | 2004/12/13

Well said Lulu.

One question though - hasn't the father a RIGHT to see his son as agreed in court?? Or does only the rights of the child count in this instance?

Just curious.

Reply to Kernel
Posted by: lulu | 2004/12/13

I agree with the above responses. Your son is old enough to decide where he wants to be. It seems a little selfish, but that's also to be expected from him in teenage years. Tell him to tell his dad himself that he has other plans and doesn't want to go visiting this holiday. Maybe another holiday instead? Explain to your ex that the child does not want to see him this holiday because of the invite from the friend and tell him to take it up with the boy if he wants to make an issue out of it. Also explain to your son that his dad might want to use legal routes to try and force him to go visit, but that this is not legal. As CS says, the court will look at what's best for the boy, and running away because he feels forced to go visit is definitly not what they will want to see.

Your ex can under NO circumstances stop paying maintenance, even if the child chooses NEVER to see him again. The law is very clear on the fact that maintenance is not linked to visitation rights at all. He's not paying you to see his son, in other words, but paying towards his son's upkeep. The child has a right to food, a home and education, whether his father sees him during holidays or not.

Good luck!

Reply to lulu
Posted by: Kernel | 2004/12/13

I partially agree with Q - it is mainly a matter between him and his dad - they must sort it out between themselves in a constructive manner. Your son is somewhat selfish by choosing a holiday with his friend above a visit to his dad - most kids of that age would do so anyway.

It is not the ideal situation to force him to visit his dad. On the other hand your ex might threaten to stop paying maintenance if the kid does not want to visit him.

Explain this situation and the implications to your son before he speaks to his dad about the visit. After all, he is still under age and cannot do as he pleases without approval from his legal guardians or parents.

Reply to Kernel
Posted by: Q | 2004/12/13

yOU SHOULD NOT GET INVOLVED WITH THIS ISSUE!!! lET YOUR SON SPEAK TO HIS DAD AND EXPLAIN HIS REASON. HE IS OF AGE WHERE HE CAN DESIDE WHERE HE WHANTS TO GO OR NOT SO LET HIM FACE THE MUSIC!!! LET DAD AND HIM TALK AND SORT IT OUT!!!

Reply to Q

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